Expeditious criminal prosecution of sitting MPs and MLAs

Will a recent direction of the Supreme Court to complete trial of pending criminal cases against sitting MPs and MLAs within one year and a similar election-time promise made by the new Prime Minister Narendra Modi result into decriminalisation of politics?

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Criminalisation of politics is one of the biggest problems affecting the Indian democracy, apart from corruption. Of late, the Supreme Court has been actively taking steps to cleanse the political system in the country to ensure that persons with criminal record do not continue to remain people’s representatives in the Parliament and in the State Legislatures. The newly appointed Prime Minister Shri Narendra Modi has also promised a similar action.

Recently, in a landmark decision on 10 July 2013, in the case of Lily Thomas v. Union of India, (2013) 7 SCC 653 (here), the Supreme Court held that Section 8(4) of the Representation of the People Act, 1951 (here), is ultra vires the Constitution and that the Parliament had no power to enact this provision and that hence disqualification for being chosen as, or, for being MP or MLA/MLC upon conviction as provided in sub-sections (1), (2) or (3) of Section 8 of the said Act shall come into effect immediately upon such conviction and that such disqualification cannot be postponed / suspended as was sought to be done by Section 8(4) of the Act. It is pertinent to mention that sub-sections (1), (2) or (3) of Section 8 of the said Act disqualify persons who have been convicted for various offences to be member of Parliament and State Legislatures. However, in respect of the sitting members of the Parliament and the State Legislatures, Section 8(4) of the said Act provided a grace period of three months even after their conviction in such offences due to which their membership of such House is not terminated in spite of such conviction, and moreover, if within that period of three months an appeal or application for revision is filed in the higher court in respect of such conviction or the sentence by such sitting member then he is not disqualified from being such member until that appeal or application is disposed of by the court. Thus, in a way, Section 8(4) provided for continuation of a sitting MP or MLA / MLC even after his conviction in a serious criminal case. In the aforesaid Lily Thomas case, the said Section 8(4) has been declared to be unconstitutional. Thus, a sitting MP or MLA / MLC would immediately lose his membership of the Parliament / Legislature once he is convicted of an offence specified in sub-sections (1), (2) or (3) of Section 8 of the said Act and punished in the manner mentioned therein. This is how Shri Lalu Prasad Yadav lost his membership of Lok Sabha immediately after he was convicted in a fodder scam case in October 2013, due to which he was also disqualified to contest the recently concluded Lok Sabha elections of 2014.

In another landmark decision on 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India [Writ Petition (Civil) No. 536 of 2011], the Supreme Court has directed that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). It was directed that in such cases, as far as possible, the trial shall be conducted on a day-to-day basis. The Supreme Court further directed that if for some extraordinary circumstances the concerned court is being not able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial, and that in such situation, the Chief Justice may issue appropriate directions to the concerned court extending the time for conclusion of the trial.

The decision in the above Public Interest Foundation case tries to take care of pending criminal cases against a sitting MP / MLA / MLC, if such offences are included in any of the provisions mentioned in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951. Thus, the trial against him will have to be compulsorily completed within a period of one year. Presuming that such a sitting member is convicted during such trial, the decision in the aforesaid Lily Thomas case will further take care that such sitting member loses his membership of the Parliament / Legislature with immediate effect.

At this juncture, it is pertinent to note that the new Prime Minister Shri Narendra Modi had repeatedly made promises during his election speeches in the recently concluded 2014 Lok Sabha elections, vowing to end criminalisation of politics, saying that if he assumes power (which he has now done as Prime Minister of India), he would request the Supreme Court for speedy trial of tainted MPs within one year (here).

How serious is the situation with regard to criminalisation of politics? Has the recent public uproar against criminalisation of politics had any impact? Well, it is disturbing to note that even in the recently concluded 2014 Lok Sabha elections, out of the 543 MPs elected by the people, as many as 186 newly elected MPs (i.e., 34% of the total number of MPs in the new Lok Sabha) have criminal cases pending against them (see this linkfor the list). In fact, as many as 112 newly elected MPs (i.e., 21% of the total number of MPs in the Lok Sabha) have serious criminal cases against them (see this linkfor the list). It is to be noted that these lists have been prepared on the basis of the declaration filed by the MPs themselves in their election affidavits; so, one can guarantee their authenticity.

That’s not all. It is not that such tainted MPs have only one criminal case pending. Most of them have more than one criminal case pending against them. RJD MP Shri Rajesh Ranjan alias Pappu Yadav has as many as 24 criminal cases pending against him, while BJP MP Dr. Ramshankar Katheria has 21 cases against him. There are many other newly elected MPs who have 10 or more criminal cases pending against them. Moreover, many of these criminal cases are pending for several years; for example, just to illustrate, Shri Pappu Yadav has a dacoity case of 1989, an attempt to murder case of 1990 and a murder case of 1999, pending against him (see this link for the list of cases against him).

Thus, the scenario is really gloomy. Every 1 out of 3 newly elected MPs has criminal case(s) against him, and every 1 out of 5 such MPs has serious criminal case(s) against him. It is not to suggest that all such criminal cases may be genuine. Many of such cases may in fact be false and may have arisen due to political rivalry or other reasons. However, what is needed, at least, is an expeditious disposal of these pending cases irrespective of the outcome of these cases. If a criminal case is found to be genuine and there is evidence to prove the same, the sitting MP or MLA will lose his seat in the Parliament / Legislature. On the other hand, if the case is found to be false, such sitting member will be exonerated and it will rather help such member to prove his clean credentials.

How serious the problem could be and what would be the consequences of a person with criminal charges continuing as a member of the Parliament or a State Legislature? It may perhaps be best illustrated by the example of Shri Shibu Soren. He was an accused in a case of murder committed on 23 January, 1975, in which 11 persons had been killed. He was charged for this murder case along with several other persons with the allegation that he had led a mob which killed 11 persons, including 9 Muslims, in Chirrudih village in Jamtara district of Bihar (now in Jharkhand state). The trial of this case was completed after a long delay of 33 years in the year 2008 in which Shri Shibu Soren was acquitted. I don’t think a trial can result in conviction after such an inordinate delay by which time most of the witnesses would have been missing / dead or would have lost interest or would have forgotten the details of the incident or would have been won over. It is interesting to note that summons were issued to him sometime in 1986 but he did not answer the summons for a murder charge for 18 long years! It was in the year 2004, about 29 years after the incident, that ultimately he surrendered in the court and that too after staging a drama of remaining “missing” for about a week even while being a sitting cabinet minister of the Central Government perhaps with the hope that he could still avoid the arrest. Curiously, after the said murder incident in 1975, he was elected to the Lok Sabha in 1980, 1989, 1991, 1996, 2002 (by-election) and 2004 and was also elected to the Rajya Sabha in 2002 from which he resigned in the same year. He was also elected to the State Legislature of Jharkhand on multiple occasions and appointed as Chief Minister of Jharkhand on three different occasions. It is pertinent to point out that he was also an accused in the infamous Jharkhand Mukti Morcha bribery case of 1990’s, wherein he was alleged to have accepted huge amounts of cash from the then Prime Minister of India, for voting in support of the vote of confidence in the Parliament. He survived in this bribery case only because of a technical immunity granted by a controversial decision of the Supreme Court [reported vide P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 : AIR 1998 SC 2120] which held that a Member of Parliament accepting a bribe for voting inside the Parliament could not be prosecuted because of parliamentary privileges while the bribe giver could be prosecuted for the same. Moreover, Shri Shibu Soren was also allegedly involved in another murder charge of killing his private secretary in 1994 apparently because the latter knew a lot of things about the said bribery matter. He was convicted in this case in 2006, but was acquitted by the High Court in 2007. The question that arises is – what would have been the fate of Shri Soren if his trial had been completed within one year of the commission of the said offence in 1975, or at least within one year of 1980 when he was first elected as a Member of Parliament? Due to timely completion of trial, if he was to face conviction, he would not have been able to contest subsequent elections. However, the cases against him got grossly delayed and he continued to win elections several times and become Member of Parliament or of the State Assembly and become Central Government Minister as well as Chief Minister of Jharkhand on multiple occasions.

The same logic would apply to the present sitting members of the Parliament or the State Legislatures. If their prosecution is not completed expeditiously, the chances of the conviction would be reduced correspondingly, and meanwhile they would keep winning elections and would continue to be members of the Parliament / Legislature and even become Ministers. This is how the system is being abused by criminals in politics. And, this is why the latest efforts to cleanse the political system assume importance.

But, will the recent Supreme Court decisions, referred to above, and the resolve of the new PM Shri Narendra Modi be helpful to ensure that the criminal cases pending against these newly elected MPs of Lok Sabha, as also against the sitting MPs of Rajya Sabha and sitting members of State Legislatures, would be completed within a period of one year so that if convicted, they could be immediately disqualified and other persons could be elected in their place as members of the Parliament / Legislatures? Well, let me first point out some of the serious constraints that I visualize in this effort:

(1) Firstly, the aforesaid Supreme Court decision of 10 March 2014 in the case of Public Interest Foundation directs completion of trial in criminal cases against the sitting MPs, etc., where charges have been framed. There are no directions in this decision for speedy completion of: (i) cases pending investigation with police agencies, or, (ii) of cases where charge-sheets have been filed by police agencies but charges are yet to be framed. Thus, there is scope for manipulation to continue as sitting MP / MLA by ensuring that a criminal case remains under investigation or by ensuring that charges are not framed by the trial court even if charge sheet is filed. And, mind you, the number of such cases would not be small. Just to illustrate, for Shri Pappu Yadav, in 7 out of 24 criminal cases against him, charges are yet to be framed even though such cases were filed long back (some of these cases against him in which charges are yet to be framed are of the years 1986, 1996, 2001, etc.). So, this is a major loophole or lacuna that needs to be taken care of, for an effective solution to the problem of criminalisation of politics. After all, a chain is only as strong as its weakest link.

(2) Secondly, it is often seen in practice that it is difficult to conclude the trial in a time-bound manner due to the enormous burden of pending cases on the criminal justice system in general and on the trial courts in particular. This happens even in a particular single case wherein specific directions have been given by the higher judiciary to complete trial in a time-bound manner. Just to give an illustration, in a particular case involving gruesome murder of a political leader at the instance of a rival political leader, the Supreme Court recently directed completion of trial in about 9 months’ period. However, this time limit expired and nothing much happened. After about 15 months, another time limit of 2 months was set to complete the prosecution evidence. Yet, even after 5 months, nothing much happened. Yet another chance was given to complete the prosecution evidence in another 2 months’ period. Even that period expired without much success. Yet another extension of time was granted for about 3 weeks. Ultimately, in this manner, the prosecution evidence was concluded after time limit to complete trial was extended several times by the highest court of the land, and that too by dropping as many as about 70 prosecution witnesses from out of about 120 witnesses! Thus, even after several extensions, prosecution evidence was completed by dropping more than 50% of the prosecution witnesses. What are the reasons for such delay despite repeated specific directions of the highest court of the land to complete the trial in a time-bound manner? Well, there are many genuine practical difficulties as well as deliberate and well-planned dilatory tactics employed by the accused persons. If it could happen in a single case despite specific Supreme Court directions in that case, what can one expect from general directions of the Court to complete trials in such a large number of cases and that too which involve influential persons (such as the sitting MPs / MLAs)? Well, my intention is not to show pessimism but to be realistic so that best efforts could be made to avoid such lapses.

(3) Another major issue is that multiple cases are pending against certain individual MPs and MLAs. As mentioned above, the number of cases go to as many as 24 in the case of Shri Pappu Yadav, a newly elected MP. Many of these cases are quite old, pending for 20-25 years. The very fact that the trial of these cases could not be completed for so many years, clearly shows that there must be some serious difficulties (genuine as well as deliberate) due to which the trial of these cases could not be completed in so many years. To ensure that the trial of all such large number of cases against a single individual would be completed now in just one year would definitely be a Herculean task. Moreover, there would be additional practical difficulties to simultaneouslyconduct trial of several cases against a single individual.

(4) All the usual difficulties experienced in a delayed trial would also arise during the trial of the sitting MPs and MLAs. For example, ensuring the presence of the witnesses on time before the trial court. There will be additional difficulties in view of the fact that the trial would be against powerful persons, i.e., sitting MPs and MLAs some of whom may even be ministers. This would definitely mean more difficulties for the trial courts to complete the trials expeditiously.

(5) What happens if the trial in such a case could not be completed within the stipulated period of one year? The aforesaid Supreme Court judgement says that in such a scenario, the matter shall be referred to the Chief Justice of the concerned High Court and the High Court will then issue directions to the trial court for extension of time. However, it is not clear what type of directions would be issued by the High Court in such situations. No specific guidelines have been issued by the Supreme Court in this regard. Therefore, the High Courts will be using their own discretion. What should perhaps be done in such a scenario is to extend the period during which the trial is to be completed, and at the same time take away other pending cases and other work from the trial court so that it could concentrate only on the trial against such sitting MP or MLA. Moreover, it is also necessary to take exemplary action against the presiding officer of the trial court if some deliberate or gross negligence is noticed on his part to strictly implement the direction to complete the trial in a time-bound manner.

I have highlighted only some of the major constraints. There would definitely be many other practical difficulties coming in the way of expeditious completion of such trials. Due to their influence and clout, the sitting MPs and MLAs who are facing criminal prosecutions, with the help of the top advocates that they can hire, would come up with various new methods to somehow thwart the efforts to complete the pending trials against them within one year. Concerted efforts on the part of the higher judiciary and the PMO would therefore be needed to ensure that the measures taken to complete expeditious trials against sitting MPs / MLAs are strictly implemented. New special courts may perhaps have to be set up, wherever needed, for taking care of the pending cases against the sitting MPs and MLAs. Responsible citizens and media also need to be alert and they may have to pursue these cases with the judiciary, wherever possible and/or needed, so that these efforts to cleanse the political system are not frustrated by vested interests.

It is true that it may not perhaps be possible to conclude trials in all pending cases against sitting MPs / MLAs within the stipulated period of one year. However, even a partial success in the beginning would be helpful which can then be followed up in subsequent years. Even if a few sitting MPs are disqualified during next one year, it will send a very strong message to others. In a lighter vein, it may perhaps be said that some people with criminal records may not like to contest elections in future if a success in elections is likely to result into expeditious completion of the cases against them leading to their conviction; instead, they may perhaps like to continue to remain ordinary citizens (rather than being MPs or MLAs) to enjoy the fruits of a delayed trial. Of course, ultimately the real solution would be to improve the criminal justice system in general so that all trials into all offences against all types of persons are concluded expeditiously within a reasonable period of a few months, by creating sufficient number of trial courts needed to dispose of increasing number of criminal cases. Till that happens, one will have to be content with a piecemeal approach of expediting trial of criminal cases against the sitting representatives of the people.

Today (27 May 2014) being the first day in office for the new Prime Minister Shri Narendra Modi, is it too much to expect from him a strong resolve to fulfil a promise that he made during his election speeches?

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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